Decree No of 13 January 2011

Transcription

1 Decree No of 13 January 2011 TITLE I - DOMESTIC ARBITRATION CHAPTER I The arbitration agreement Article 1442 The arbitration agreement shall be either in the form of an arbitration clause or of a submission agreement. The arbitration clause is the agreement pursuant to which the parties to one or more contract(s) undertake to submit disputes that may arise in connection with such contract(s) to arbitration. The submission agreement is an agreement pursuant to which parties to a dispute that has arisen submit such dispute to arbitration. Article 1443 The arbitration agreement shall be in writing, failing which it shall be void. This agreement may either arise from an exchange of written documents or from a document to which reference is made in the main agreement. Article 1444 The arbitration agreement shall designate, including by reference to arbitration rules, the arbitrator or arbitrators, or provide for the terms and conditions of their appointment. In the absence of such designation or method of appointment, the procedure foreseen under articles 1451 to 1454 shall apply. Article 1445 The submission agreement shall determine the subject matter of the dispute, failing which it shall be void. Article 1446 Parties may agree to arbitrate even while proceedings are already pending before a [State] court. Article 1447 The arbitration agreement is independent from the contract to which it relates. shall not be affected by the inefficiency of such contract. When it is void, the arbitration clause shall be deemed not written. The arbitration agreement Article 1448 Where a dispute covered by an arbitration agreement is filed before a State court, the latter shall decline jurisdiction unless [(i) the dispute] has not yet been submitted to the arbitral tribunal and [(ii)] the arbitration agreement is manifestly void or manifestly inapplicable. The State court may not decline jurisdiction on its own motion. Any contractual provision to the contrary shall be deemed not written. Article 1449 The existence of an arbitration agreement shall not prevent a party from requesting a State court to grant an investigation measure, a provisional or conservatory measure, for so long as the arbitral tribunal is not constituted. Subject to the provisions governing conservatory attachments and judicial securities, the request shall be filed before the President of the First Instance Court (Tribunal de grande instance) or of the Commercial Court (Tribunal de commerce), who shall decide upon the investigation measures under the conditions foreseen in 1

2 article 145 and, in case of emergency, on the provisional or conservatory measures requested by the parties to the arbitration agreement. CHAPTER II The arbitral tribunal Article 1450 The arbitrator's mission may only be fulfilled by an individual with full capacity to exercise his or her rights. If the arbitration agreement designates a legal entity, such entity shall only have the power to administer the arbitration. Article 1451 The arbitral tribunal shall comprise one arbitrator or several arbitrators in an odd number. An additional arbitrator shall be appointed if the arbitration agreement provides for an even number of arbitrators. In case the parties fail to agree on the appointment of an additional arbitrator, an additional arbitrator shall be appointed by the chosen arbitrators, within one month from the acceptation of their appointment, failing which, by the supporting judge mentioned in article Article 1452 In the absence of the parties' agreement on the terms and conditions of appointment of the arbitrator(s): 1 in case of an arbitration by a sole arbitrator, where the parties do not agree on the choice of the arbitrator, the latter shall be appointed by the entity in charge of administering the arbitration, failing which, by the supporting judge; 2 in case of an arbitration by three arbitrators, each party shall choose one and the two so chosen arbitrators shall appoint the third one; if a party fails to appoint an arbitrator within one month from receipt of the other party's request to do so, or if the two arbitrators fail to agree on the choice of a third one within a month from acceptance of their appointment, the entity in charge of administering the arbitration, and failing which, the supporting judge, shall proceed with this appointment. Article 1453 When the dispute involves more than two parties and that they fail to agree on the terms and conditions for the constitution of the arbitral tribunal, the entity in charge of administering the arbitration, and failing which, the supporting judge, shall appoint the arbitrator(s). Article 1454 Any other dispute relating to the constitution of the arbitral tribunal shall be settled, in the absence of the parties' agreement, by the entity in charge of administering the arbitration, and failing which, by the supporting judge. Article 1455 Where the arbitration clause is either manifestly void or manifestly inapplicable, the supporting judge shall declare that there will be no such appointment. Article 1456 The arbitral tribunal is constituted once the arbitrator(s) have accepted the mission entrusted upon them. As of that date, the tribunal is in charge of the dispute. The arbitrator must, prior to accepting his or her mission, disclose any circumstance which may affect his or her independence or impartiality. He or she must also disclose without any delay any circumstance of the same nature which may arise after the acceptance of his or her mission. 2

3 In case of a dispute as to whether an arbitrator should remain [on the tribunal], the issue shall be decided by the entity in charge of administering the arbitration, and failing which, decided by the supporting judge upon request to be filed within one month following the disclosure or discovery of the disputed fact. Article 1457 The arbitrator must carry out his or her mission until completion unless he or she shows evidence of an impediment or legitimate ground for refraining or resigning. In case of a dispute regarding the reality of the reason invoked, the issue shall be settled by the entity in charge of administering the arbitration, and failing which, by the supporting judge upon request to be filed within one month following the impediment, failure to perform or resignation. Article 1458 The arbitrator may only be dismissed by the unanimous consent of the parties. In the absence of unanimity, the provisions of the last paragraph of article 1456 shall be followed. Article 1459 The supporting judge with jurisdiction shall be the President of the First Instance Court (Tribunal de grande instance). However, if the arbitration agreement expressly provides so, the President of the commercial court (Tribunal de commerce) shall have jurisdiction to hear requests made on the basis of articles 1451 to In such a case, the President may apply article The judge with territorial jurisdiction shall be the judge designated by the arbitration agreement, and failing which, the judge with territorial jurisdiction where the seat of the arbitral tribunal was determined. In the absence of any provision in the arbitration agreement, the judge with territorial jurisdiction shall be the judge of the place where the party(ies) resisting the application reside(s) or, if the resisting party does not reside in France, of the place where the requesting party resides. Article 1460 A request before the supporting judge shall either be filed by a party, the arbitral tribunal, or one of its members. The application is filed, heard and decided as in expedited proceedings (référé). The supporting judge shall decide by way of an order against which no recourse is available. However, this order may be subject to appeal when the judge declares that there can be no appointment for any reason provided under article Article 1461 Subject to the provisions of the first paragraph of article 1456, any provision contrary to the rules set forth in this chapter shall be deemed not written. CHAPTER III The arbitral proceedings Article 1462 The dispute shall be submitted to the arbitral tribunal either by the parties jointly, or by the most diligent party. Article 1463 If the arbitration agreement does not determine a time-limit, the duration of the arbitral tribunal s mission is limited to six months from the date upon which it was charged with the matter. 3

4 The legal or conventional time-limit may be extended by agreement of the parties or, failing which, by the supporting judge. Article 1464 Unless otherwise agreed by the parties, the arbitral tribunal shall determine the procedure to be followed in the arbitration without being bound to follow the rules set forth for State courts. However, the fundamental principles guiding court proceedings set forth in articles 4 to 10, first paragraph of article 11, second and third paragraphs of article 12, and articles 13 to 21, 23 and 23-1 shall always apply. The parties and the arbitrators shall act with celerity and loyalty in the conduct of the proceedings. Subject to legal requirements, and unless the parties otherwise provide, the arbitral proceedings shall be subject to the principle of confidentiality. Article 1465 The arbitral tribunal has exclusive jurisdiction to rule on objections to its jurisdictional power. Article 1466 The party which, knowingly and without any legitimate reason, fails to timely object to an irregularity before the arbitral tribunal is deemed to have waived the right to rely upon such irregularity. Article 1467 The arbitral tribunal shall proceed with the necessary steps for the taking of evidence unless the parties authorize the tribunal to assign such task to one of its members. The arbitral tribunal may hear any person. Such hearing shall take place without the taking of oath. If a party is in possession of an item of evidence, the arbitral tribunal may order that party to submit such evidence according to the terms and conditions the tribunal decides and, as need be, under penalty. Article 1468 The arbitral tribunal may order any conservatory or provisional measure upon the parties that it deems appropriate under the conditions it determines and, as need be, under penalty. However, the State court has exclusive jurisdiction to order conservatory attachments and judicial securities. The arbitral tribunal may amend or add to the conservatory or provisional measure it has ordered. Article 1469 In case a party to the arbitral proceedings intends to rely upon a notarized (acte authentique) or private contract to which it was not a party, or a piece of evidence held by a third party, it may, upon the arbitral tribunal's invitation, file a claim against that third party before the President of the First Instance Court in order to obtain a copy thereof, or the submission of the document or piece of evidence. The territorial jurisdiction of the President of the First Instance Court shall be determined in accordance with articles 42 to 48. The request shall be filed, heard and decided as in expedited proceedings. If the President considers that the request is justified, he or she shall order the delivery or submission of an original, copy or abstracts, as the case may be, of the document or evidence, under the conditions and guarantees that he or she shall determine, and as need be, under penalty. Such decision is not enforceable as of right. Such decision may be subject to appeal within fifteen days following service [by bailiff] of the decision. 4

5 Article 1470 Unless otherwise provided, the arbitral tribunal has the power to settle disputes concerning the authentication of handwriting or a claim of forgery, in accordance with the provisions of articles 287 to 294 and article 299. In case of an incidental claim of forgery, article 313 shall apply. Article 1471 Suspension of the proceedings is governed by the provisions of articles 369 to 372. Article 1472 The arbitral tribunal may, if need be, stay the proceedings. Such decision shall suspend the course of the proceedings for the time-period, or until the occurrence of the event, this decision determines. The arbitral tribunal may, according to the circumstances, lift the stay or shorten its duration. Article 1473 Unless otherwise provided, the arbitral proceedings shall also be stayed in the event of death, impediment, failure to act, resignation, challenge or removal of an arbitrator, until the replacing arbitrator has accepted his or her mission. The new arbitrator shall be appointed in accordance with terms and conditions agreed upon by the parties, and failing which, in accordance with those which governed the appointment of the arbitrator he or she replaces. Article 1474 The suspension or stay of the proceedings shall not discharge the arbitral tribunal. The arbitral tribunal may invite the parties to inform it of the steps they have taken in order to resume the proceedings or put an end to the causes of the suspension or stay. In case of failure from the parties to take action, the tribunal may terminate the proceedings. Article 1475 The proceedings shall resume at the stage reached at the time it was suspended or stayed, when the causes for such suspension or stay cease to exist. At the time the proceedings resume, and as an exception to article 1463, the arbitral tribunal may decide that the duration of the proceedings shall be extended for a period not exceeding six months. Article 1476 The arbitral tribunal shall set the date upon which the decision shall be rendered. During deliberations, no claim may be made, no argument may be raised and no evidence may be submitted, unless requested by the arbitral tribunal. Article 1477 The expiry of the time-limit set for the arbitration terminates the arbitral proceedings. CHAPTER IV The arbitral award Article 1478 The arbitral tribunal shall settle the dispute in accordance with the rules of law, unless the parties entrusted the tribunal with the mission to decide as amiable compositeur. 5

6 Article 1479 The deliberations of the arbitral tribunal shall be confidential. Article 1480 The arbitral award shall be rendered by a majority of votes. It shall be signed by all the arbitrators. If a minority among them refuses to sign it, the award shall so state and the award shall have the same effect as if it had been signed by all the arbitrators. Article 1481 The arbitral award shall mention: 1 the last name, first names or corporate name of the parties as well as their domicile or registered office; 2 as the case may be, the name of counsel or any person who represented or assisted the parties; 3 the name of the arbitrators who rendered the award; 4 its date; and 5 the place where the award was rendered. Article 1482 The arbitral award shall succinctly state the respective claims and arguments of the parties. The award shall be reasoned. Article 1483 Violation of the provisions of article 1480, article 1481 regarding the name of the arbitrators and the date of the award, and article 1482 regarding the reasoning of the award, shall render the award void. However, the omission or inaccuracy of a mention destined to establish the validity of the award may only render the award void, if it is shown in the proceedings documents or by any other means, that the legal requirements were in fact, abided by. Article 1484 As soon as it is made, the arbitral award is res judicata with regard to the dispute it settles. The award may be declared provisionally enforceable. The award shall be notified by way of service (bailiff) unless the parties agree otherwise. Article 1485 The award discharges the arbitral tribunal from the dispute the award settles. However, at a party's request, the arbitral tribunal may interpret the award, rectify clerical errors and omissions affecting the award, or add to the award if the tribunal failed to decide a claim. The arbitral tribunal shall decide after having heard the parties or having called upon them [to be heard]. If the arbitral tribunal may not be reconvened, and if the parties cannot agree on its reconstitution, this power belongs to the court which would have had jurisdiction had there been no arbitration. Article 1486 Claims made pursuant to the second paragraph of article 1485 shall be filed within three months from the notification of the award. Unless otherwise agreed, the corrective or amended award shall be rendered within three months from the date the arbitral tribunal is charged with the request. This time-limit may be extended in accordance with the second paragraph of article The corrective or amended award shall be notified in the same manner as the initial award. 6

7 CHAPTER V The exequatur Article 1487 The arbitral award may only be enforced by way of an enforcement order (exequatur) issued by the First Instance Court with jurisdiction at the place where the award was rendered. The proceedings relating to the request for enforcement shall be ex parte. The request shall be filed by the most diligent party with the secretariat of the court, together with the original of the award and arbitration agreement, or copies thereof satisfying the conditions required to ascertain their authenticity. The enforcement order shall be affixed to the original or, if the latter is not produced, the copy of the arbitral award complying with the conditions required under the paragraph above. Article 1488 The enforcement order may not be granted if the award is manifestly contrary to public policy. The order refusing enforcement (exequatur) shall be reasoned. CHAPTER VI Means of recourse Section 1 The appeal Article 1489 The award shall not be subject to appeal, unless otherwise agreed by the parties. Article 1490 The appeal aims at reversing or setting aside the award. The court shall decide in accordance with the law or as amiable compositeur within the limits of the arbitral tribunal's mission. Section 2 The action for setting aside Article 1491 The award may always be subject to an action to set aside, unless appeal is available in accordance with the parties' agreement. Any provision to the contrary shall be deemed not written. Article 1492 The action to set aside is only available where: 1 the arbitral tribunal wrongly retained or denied jurisdiction, 2 the arbitral tribunal was improperly constituted, 3 the arbitral tribunal decided without complying with the mission conferred upon it, 4 the principle of due process was not complied with, 5 the award is contrary to public policy, or 6 the award is not reasoned or fails to indicate either the date upon which it was rendered, or the name of the arbitrator(s), or does not contain the required signature(s), or was not rendered by a majority decision. Article 1493 When the court sets the arbitral award aside, it shall decide on the merits of the case within the limits of the arbitrator s mission, unless otherwise agreed by the parties. 7

8 Section 3 Common provisions concerning the appeal and the action to set aside Article 1494 The appeal and the action to set aside shall be brought before the court of appeal with jurisdiction over the place where the award was rendered. Such recourses are admissible as soon as the award is rendered. They are no longer admissible if they have not been filed within a month from notification of the award. Article 1495 The appeal and the action to set aside are filed, heard and decided in accordance with the rules governing adversarial proceedings foreseen in articles 900 to Article 1496 The deadline for the filing of the appeal, or the action to set aside, as well as the action filed within that deadline suspend enforcement of the award, unless the award is granted provisional enforcement. Article 1497 The first President deciding in expedited proceedings or, as soon as in charge, the judge in charge of the procedure (conseiller de la mise en état), may: 1 when the award was granted provisional enforcement, stay or set conditions for enforcement where such enforcement may have manifestly excessive consequences, or 2 when the award was not granted provisional enforcement, order the provisional enforcement of all or part of that award. Article 1498 When the award was granted provisional enforcement, or where article is applied, the first President or, as soon as in charge, the judge in charge of the procedure (conseiller de la mise en état) may grant enforcement (exequatur) on the arbitral award. Denial of the appeal or of the action to set aside grants enforcement to the award or to the provisions of the award which have not been affected by the court's decision. Section 4 Recourse against the order deciding on the request for enforcement (exequatur) Article 1499 The order granting enforcement is not subject to any recourse. However, the appeal or the action to set aside the award shall, as of right and within the limits of the court s mission, either constitute recourse against the order of the judge who decided on the enforcement, or shall end that judge's mission. Article 1500 The order which denies enforcement may be subject to appeal within one month from service (by bailiff) of that order. In such a case, the court of appeal shall, at the request of a party, decide on the appeal or the action to set aside the award, provided that the time-limit for filing such recourse has not expired. 8

9 Section 5 Other means of recourse Article 1501 The award may be challenged by a third party (tierce opposition) before the court which would have had jurisdiction in the absence of arbitration, subject to the provisions of the first paragraph of article 588. Article 1502 The action for revision is available against the award in cases provided for judgments at article 595 and under the conditions set forth in articles 594, 596, 597 and 601 to 603. The action shall be filed before the arbitral tribunal. However, if the tribunal cannot be reconvened, the action shall be filed before the court of appeal which would have had jurisdiction to hear other forms of recourse against the award. Article 1503 The arbitral award may neither be the subject of opposition proceedings or petition before the Supreme Court. TITLE II - INTERNATIONAL ARBITRATION Article 1504 An international arbitration is one that involves the interests of international trade. Article 1505 In international arbitration, the supporting judge shall be, subject to any provision to the contrary, the President of the Paris First Instance Court when: 1 the arbitration takes place in France, 2 the parties have agreed to submit the arbitration to French procedural law, 3 the parties have expressly granted jurisdiction to the French state courts over disputes relating to the arbitral procedure, or 4 one of the parties is facing a risk of denial of justice. Article 1506 Unless the parties have agreed otherwise, and subject to the provisions of this title, the following articles shall apply to international arbitration: , 1447, 1448 (paragraphs 1 and 2) and 1449, relating to the arbitration agreement; to 1458 and 1460, relating to the constitution of the arbitral tribunal and the procedure to be followed before the supporting judge; , 1463 (paragraph 2), 1464 (paragraph 3), 1465 to 1470 and 1472 relating to the arbitral proceedings; , 1481, 1482, 1484 (paragraphs 1 and 2), 1485 (paragraphs 1 and 2) and 1486 relating to the arbitral award; and (paragraphs 1 and 2) and 1503 relating to the recourses other than appeal and action to set aside. CHAPTER I - The international arbitration agreement Article 1507 The arbitration agreement is not subject to any formal requirement. 9

10 Article 1508 The arbitration agreement may, directly or by reference to arbitration or procedural rules, designate the arbitrator(s), or provide for the terms and condition of their appointment. CHAPTER II The arbitration proceedings and the arbitral award Article 1509 The arbitration agreement may, directly or by reference to arbitration or procedural rules, determine the procedure to be followed in the arbitration proceedings. Where the arbitration agreement is silent, the arbitral tribunal shall determine the procedure as need be, either directly or by reference to arbitration or procedural rules. Article 1510 Whatever may be the chosen procedure, the arbitral tribunal shall ensure equality among the parties and shall abide by the principle of due process. Article 1511 The arbitral tribunal shall decide the dispute in accordance with the rules of law chosen by the parties, failing which, in accordance with the rules of law the tribunal considers appropriate. The tribunal shall in all cases take trade usages into account. Article 1512 The arbitral tribunal shall decide as amiable compositeur if the parties have entrusted the tribunal with such mission. Article 1513 Where the arbitration agreement is silent, the award shall be rendered by a majority of votes. The award shall be signed by all the arbitrators. However, should a minority among them refuse to sign the award, the other arbitrators shall mention it in the award. In the absence of a majority, the President of the arbitral tribunal shall decide alone. If the other arbitrators refuse to sign the award, the President shall mention it in the award, which he or she shall then sign alone. The award rendered in the circumstances foreseen in one of the two preceding paragraphs shall produce the same effects as if it had been signed by all the arbitrators or rendered by a majority of votes. CHAPTER III Recognition and enforcement of arbitral awards made abroad or in international arbitration Article 1514 Arbitral awards shall be recognized or enforced in France if their existence is established by the party relying upon them and if said recognition or enforcement is not manifestly contrary to international public policy. Article 1515 The existence of an arbitral award is established through the submission of the original thereof together with the arbitration agreement or copies of such documents satisfying the conditions required to ascertain their authenticity. If such documents are not drafted in the French language, the requesting party shall submit a translation thereof. The requesting party may be invited to submit a translation established by a translator registered on a list of court experts or by a translator accredited by the administrative or judicial authorities of another 10

11 Member State of the European Union, a Contracting Party to the European Economic Area Agreement or to the Swiss Confederation. Article 1516 The arbitral award may only be enforced pursuant to an enforcement order (exequatur) issued by the First Instance Court with jurisdiction over the place where the award was rendered, or by the Paris First Instance Court when the award was rendered abroad. The procedure relating to the request for enforcement shall be ex parte. The request shall be filed by the most diligent party with the secretariat of the court together with the original of the award and of the arbitration agreement or their copies satisfying the conditions required to ascertain their authenticity. Article 1517 The enforcement order (exequatur) shall be affixed on the original or, if the original is not submitted, on the copy of the arbitral award complying with the conditions foreseen under the last paragraph of article Where the arbitral award is not drafted in the French language, the enforcement order shall also be affixed on the translation established in accordance with the conditions foreseen under article The order which denies enforcement (exequatur) to the arbitral award shall be reasoned. CHAPTER IV Recourse Section 1 Awards rendered in France Article 1518 The arbitral award rendered in France in an international arbitration may only be subject to an action to set aside. Article 1519 The action to set aside shall be brought before the court of appeal with jurisdiction over where the award was rendered. Such recourse is admissible as from the rendering of the award. It is no longer admissible if not filed within one month from notification of the award. Notification shall be made by service (bailiff) unless otherwise agreed by the parties. Article 1520 The action to set aside is only available where: 1 the arbitral tribunal has wrongly retained or denied jurisdiction, 2 the arbitral tribunal was improperly constituted, 3 the arbitral tribunal ruled without complying with the mission conferred upon it, 4 the principle of due process was not complied with, or 5 recognition or enforcement of the award is contrary to international public policy. Article 1521 The First President or, as soon as in charge, the judge in charge of the procedure (conseiller de la mise en état), may grant enforcement to the award. 11

12 Article 1522 By way of a specific agreement, the parties may at any time expressly waive their right to file an action to set aside. In such a case, they may nevertheless appeal the enforcement order on one of the grounds set forth in article The appeal shall be filed within one month from service of the award bearing the enforcement order. Notification shall be made by service (by bailiff), unless otherwise agreed by the parties. Article 1523 The decision refusing recognition or enforcement (exequatur) of an international arbitration award rendered in France may be appealed. The appeal shall be filed within one month from service (by bailiff) of the decision. In such a case, the court of appeal shall decide, at a party's request, on the action to set aside the award, unless either such party has waived the right to initiate such action, or the time-limit for filing such action has expired. Article 1524 The order granting enforcement is not subject to any recourse except in the case foreseen in the second paragraph of article However, the action to set aside the award shall, as of right and within the limits of the court s mission, either constitute recourse against the order of the judge who decided on the enforcement, or shall end that judge's mission. Section 2 Awards rendered abroad Article 1525 The decision ruling on a request for recognition or enforcement of an arbitral award rendered abroad may be appealed. The appeal shall be filed within one month from service (by bailiff) of the decision. The parties may nevertheless agree upon another means of notification when the appeal is filed against the award bearing the enforcement order. The court of appeal may only refuse recognition or the granting of an enforcement order on the arbitral award for the grounds set forth in article Section 3 Common provisions concerning awards rendered in France and abroad Article 1526 The action to set aside the award and the appeal against the decision granting the enforcement order (exequatur) shall not suspend enforcement. However, the First President ruling in expedited proceedings or, as soon as in charge, the judge in charge of the procedure (conseiller de la mise en état) may suspend or set conditions for enforcement of the award if such enforcement may seriously harm one of the parties' rights. Article 1527 The appeal of the order deciding on enforcement and the action to set aside the award shall be filed, heard and decided in accordance with the rules governing adversarial proceedings set forth in articles 900 to Denial of the appeal or of the action to set aside grants enforcement to the award, or to the provisions of the award which have not been affected by the court's decision. 12